The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-02-09
SUPREME COURT CASES
Reported for The ciarioa by w. H Harper
Attorssy-st-Lsw, Jackson. Mics
FRosr & SOLOMON,

FROST & SoLoMoN,
The srArE.
Appeal from the Circuit Court OF
Lowndes county Hon. W. NJ. hog-
ers, Judge.
HUMPHREYS & Sykes, q. A. Evans and
J. E. Leigh, for the appellants.
I. NJ Miller, Attorney General, for the
State.
Willie frost and @. Solomon were
Jointly indicted at the June term, 1886,
of the circuit court of Lowndes county
for unlawfully selling vinous and spir-
ituous liquors. The Indictment sets out
that frost and Solomon "did then and
there unlawfully sell vinous liquors and
spirituous liquors to one r. b. Nesbit,
Jr.. in quantities of from one to five gal
Ions, without license therefor, accord
ing TO the requirements of the statute
in such case made and provided" The
defendants moved to quash the indict-
ment % because it did not inform the
defendants of the particular statute
they are charged with violating; l2)
because sit does not appear from the In
dictment that at the time of the offence
alleged to have been committed. defend
ants did not have privilege tax license
issued to them by the tax collector OF
the county of Lowndes within twelve
months next prior TO that date, and
whilst vinous liquors were being retailed
in the city of Columbus and county OF
Lowndes, under the general laws OF this
State" The court overruled this mo-
ton TO quash the indictment, and the
defendants filed special plea, setting
out that they, on Nov. l, 1885, had paid
their privilege license to carry on the
wholesale liquor business for one year,
as required by law, while vinous and
spirituous liquors were still permitted
to be sold by retail in the city of Col
umbus. On motion, this plea was
stricken out. The cause was then by
agreement submitted to the Judge on
the following agreed state of facts: That
on Nov. /, 1885, defendants took out
privilege tax license for $3.50, in accord
ance with chapter X. code of 1880, to
sell liquers in Columbus in any quantity
not less than one gallon, but without
petition signed by majority OF the le-
gal voters being presented therefor;
that the last license to retail vinous and
spirituous liquors in Columbus expired
on Jan. %, 1886, and that no license to
retail liquors has been issued there since,
but that at the time of the issuance of
defendants wholesale license, liquors
were being retailed in Columbus, under
the laws of this State, and that on April
10, 1886, defendants sold one gallon of
whisky to r. B. Nesbit, Jr.
An act approved March IL, 1884, acts
of 1884, p. 200, provides, "that it shall
be unlawful for any person to sell any
vinous or spirituous liquors in quaint
ties from one to FIVE gallons, unless he
shall first comply with the provisions of
sections 1103 and 1104 of the revised
code of 1880, and shall have received a
license as required by sec. 1105 of said
to dealers where the same is being re-
State"
The court found the defendants guilty
and they appealed.
ARNOLD, j., delivered the opinion of
the Court.
The objections made to the indictment
were properly overruled. The negation
of authority to sell as therein alleged,
was broad enough to cover all the forms
and sources from which license could be
derived. Bish. Stat. Crimes, I'd Ed. Sec
1912.
There was no error in striking out the
special plea of appellants. The facts
therein stated constituted no defence,
and if they had, they might have been
given in evidence under the general
issue. l Wharf. Or. L. Sec. 53S.
The act approved March 18th, 1884,
acts 1884, p. 200, does not apply to
towns, cities or supervisors districts in
which liquor is being sold by retail
under the general laws of the State, as
long as it is so sold therein. The pur-
pose of the act, deducible from its terms,
was co place new restrictions on whole
sale dealers of liquor, only in localities
in which retailing was lot tolerated
under the general laws of the State.
The act declares the policy, that where
retailing is allowed and approved, and
as long as it continues, that wholesale
dealers may sell on the terms prescribed
by prior and existing laws, but that
where retailing is not allowed, liquor
shall not be sold in quantities from one
to five gallons, unless the seller conforms
to the requirements of the act, by OBJ
tanning license, and the approval of the
majority of the legal voters of the town,
city or district, and giving bond in the
same manner that retailers are required
to do. Appellants wholesale license
procured pursuant to prior laws, without
conformity to the act of 1884, protected
them as long as retailing was carried on
under the general laws of the State, in
Columbus, and no longer. After that,
it became, in the language of the act of |
1884, unlawful for any person to sell in |
quantities of from one to five gallons,
without first complying with the terms
of the act.
1t is admitted that when the sale for |
which appellants were indicted occurred,
retailing under the general laws of the |
State, had ceased in Columbus, and it
follows from has been said, that the |
judgment must be affirmed.